Citation Nr: 0630430
Decision Date: 09/28/06 Archive Date: 10/04/06
DOCKET NO. 03-23 103 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to service connection for hepatitis C and stage 4
cirrhosis of the liver due to treatment for service-connected
musculoskeletal disability, fibromyositis with spinal
stenosis, post L5 laminectomy (lower back disability).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Rose, Counsel
INTRODUCTION
The veteran had active military service from January 1985 to
April 1987.
This matter comes to the Board of Veterans' Appeals (Board)
from rating decisions of the Department of Veterans Affairs
(VA) Regional Office (RO) in Las Vegas, Nevada, which denied
service connection for hepatitis C and cirrhosis of the liver
as secondary to service-connected lower back disability.
The Board requested a VHA medical opinion in February 2006.
The opinion was received in March 2006. The veteran and
representative were given an opportunity to respond. The
veteran's response included the submission of additional
evidence in May 2006. In addition, the veteran had provided
medical evidence, received in August 2005. Neither the
evidence submitted in August 2005 nor May 2006 included a
waiver of initial consideration of such evidence by the RO.
However, in an August 2006 statement, the veteran's
representative indicated that the veteran was waiving initial
RO consideration of the additional evidence submitted in
August 2005 and May 2006. As such, the claim does not
warrant further consideration by the RO and is ready for
adjudication.
FINDING OF FACT
1. Hepatitis clearly and unmistakably pre-existed service;
and clearly and unmistakably did not increase in severity
during service.
2. The veteran's hepatitis C and cirrhosis of the liver are
not related to service or her service-connected lower back
disability, including treatment for lower back disability.
CONCLUSION OF LAW
Hepatitis C and cirrhosis of the liver were not incurred or
aggravated in service, nor may its incurrence or aggravation
therein be presumed, and neither were caused or aggravated by
the service-connected lower back disability, including
medication treatment for lower back disability. 38 U.S.C.A.
§§ 1110, 1131, 5102, 5103, 5103A, 5107 (West Supp. 2005); 38
C.F.R. §§ 3.303, 3.310 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
Prior to the initial unfavorable decision from the agency of
original jurisdiction (AOJ), the claimant must be provided
notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b). Such notice must include the following four
elements: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should give us everything you've got pertaining to
your claim.
In the instant case, the initial unfavorable agency decision
was made prior to the veteran receiving proper notification
for her service connection claim. However, upon review, the
Board finds that the lack of such a pre-agency of original
jurisdiction-decision notice did not result in prejudicial
error in this case.
The Board notes that the initial unfavorable agency decision
was made in January 2000, prior to enactment of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b). Therefore, it was not
possible to provide the veteran with pre-decision notice.
Nevertheless, the veteran was issued proper notification
letter dated in June 2001. The June 2001 letter met all four
elements under 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b). The letter provided the veteran with a summary
of the evidence, including known risk factors for hepatitis.
She was specifically notified the veteran that VA would
obtain all relevant evidence in the custody of a federal
department or agency, including VA, Vet Center, service
department, Social Security, and other federal agencies. She
was advised that it was hers responsibility to either send
medical treatment records from her private physician
regarding treatment, or to provide a properly executed
release so that VA could request the records for him.
Additionally, the veteran was asked to submit any evidence in
her possession. The veteran was also provided notice of
applicable laws and regulations, and a discussion of the
facts of the case, and the basis for denial in a February
2006 supplemental statement of the case (SSOC).
As sufficient notice was provided to the veteran, it is
therefore the Board's conclusion that the veteran has been
provided with every opportunity to submit evidence and
argument in support of her claims. The duty to notify the
veteran was satisfied under the circumstances of this case.
38 U.S.C.A. § 5103; see Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006).
During the pendency of the appeal, the Court held that the
VCAA notice must include notice that a disability rating and
an effective date for the award of benefits will be assigned,
if service connection is awarded. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). The June 2001 letter did
not include such notice. However, the veteran's claim for
service connection is denied in this decision and therefore,
an increased rating claim and earlier effective date claim is
moot. The Board further notes that the veteran has not
otherwise raised or appealed any issue involving increased
rating claims or earlier effective date. The Board will not
further comment on any potential effective date claim as it
does not have jurisdiction over such claims at this time.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claims.
38 U.S.C.A. § 5103A (West Supp. 2005); 38 C.F.R. § 3.159
(2005).
The claims file includes service medical records, numerous
medical records, including treatment for her lower back
disability and hepatitis and cirrhosis, VA examination
reports and VHA opinion, and statements from the veteran. It
does not appear that there are any other additional records
that are necessary to obtain before proceeding to a decision
in this case.
In summary, the Board is satisfied that all relevant facts
have been adequately developed to the extent possible; no
further assistance to the veteran in developing the facts
pertinent to the issues on appeal is required to comply with
the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R.
§ 3.159.
II. Service Connection
The veteran essentially contends that her hepatitis C and
cirrhosis of the liver were caused or aggravated by her
service-connected lower back disorder, including medication
treatment for lower back disorder, or in the alternative,
directly related to service.
Service connection may be granted for disability arising from
disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2005). For
the showing of chronic disease in service, there is required
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic."
Service connection may be also granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2006).
Service connection connotes many factors, but basically, it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service. A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease in service. See Pond v.
West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App.
247, 253 (1999).
Review of the record shows that the veteran was diagnosed
with hepatitis prior to entry into service. Therefore,
questions involving whether hepatitis preexisted service and
whether it was aggravated in service are before the Board. A
veteran will be considered to have been in sound condition
when examined, accepted and enrolled for service, except as
to defects, infirmities, or disorders noted at entrance into
service, or where clear and unmistakable (obvious or
manifest) evidence demonstrates that an injury or disease
existed prior thereto. Only such conditions as are recorded
in examination reports are to be considered as noted. 38
U.S.C.A. §§ 1111, 1131, 1132; 38 C.F.R. § 3.304(b). VA's
General Counsel held that to rebut the presumption of sound
condition under 38 U.S.C. § 1111, VA must show by clear and
unmistakable evidence (1) that the disease or injury existed
prior to service and (2) that the disease or injury was not
aggravated by service. The claimant is not required to show
that the disease or injury increased in severity during
service before VA's duty under the second prong of this
rebuttal standard attaches. VAOGCPREC 3-2003; see generally
Cotant v. Principi, 17 Vet. App. 116, 124 (2003) (CAVC raised
the question of the proper interpretation of sections 1111
and 1153 and the validity of the pertinent part of 38 C.F.R.
§ 3.304(b) under that interpretation). Effective May 4,
2005, VA amended its regulations at 38 C.F.R. § 3.304(b) to
reflect the change in the interpretation of the statute
governing the presumption of sound condition. The final rule
conforms to Federal Circuit precedent Wagner v. Principi, 370
F. 3d 1089, 1096 (Fed. Cir. 2004), and applies to claims,
which were pending on or filed after May 4, 2005. As the
veteran's case was pending as of that date, the amendment
applies.
If a pre-existing disorder is noted upon entry into service,
the veteran cannot bring a claim for service connection for
that disorder, but the veteran may bring a claim for service-
connected aggravation of that disorder. In that case section
1153 applies and the burden falls on the veteran to establish
aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.
Cir. 1994). If the presumption of aggravation under section
1153 arises, the burden shifts to the government to show a
lack of aggravation by establishing "that the increase in
disability is due to the natural progress of the disease."
38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d
at 1417, Wagner, supra.
Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
pre-service disability underwent an increase in severity
during service. This includes medical facts and principles
which may be considered to determine whether the increase is
due to the natural progress of the condition. Aggravation
may not be conceded where the disability underwent no
increase in severity during service on the basis of all the
evidence of record pertaining to the manifestations of the
disability prior to, during and subsequent to service. 38
C.F.R. § 3.306(b).
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. § 5107
(West Supp. 2005). A veteran is entitled to the benefit of
the doubt when there is an approximate balance of positive
and negative evidence. See also, 38 C.F.R. § 3.102. When a
veteran seeks benefits and the evidence is in relative
equipoise, the veteran prevails. See Gilbert v. Derwinski, 1
Vet. App. 49 (1990). The preponderance of the evidence must
be against the claim for benefits to be denied. See Alemany
v. Brown, 9 Vet. App. 518 (1996).
Upon review, service medical records show that in an
Applicant Medical Prescreening Form dated prior to entry into
active service, it was noted that the veteran had hepatitis.
Specifically, the examiner noted that the veteran had
hepatitis since 1981. In the Report of Medical History dated
in October 1984, the veteran again indicated that she had a
history of hepatitis. In a clinical record dated in December
1985, the veteran indicated to the examiner that she had a
history of hepatitis that pre-dated service.
The Board considers the above evidence clear and unmistakable
evidence of preexisting hepatitis. As such, it must be
determined whether there is clear and unmistakable evidence
that the veteran's pre-existing hepatitis was not aggravated
by service. See 38 C.F.R. § 3.304(b); Wagner v. Principi,
370 F. 3d 1089, 1096 (Fed. Cir. 2004) (citing 38 U.S.C. §
1111 (emphasis added)); see VAOGCPREC 3- 2003 (July 16,
2003); see generally Cotant v. Principi, 17 Vet. App. 116,
124 (2003).
The veteran does not contend, nor are there findings of any
in-service incident that showed aggravation of her hepatitis
during service. Clinical records during service are silent
for treatment or aggravation of hepatitis. Separation
examination report and Physical Evaluation Board Proceedings
report dated in January 1987 did not reference any
aggravation of her hepatitis. The Board finds that the
absence of any in-service findings related to hepatitis
provides clear and unmistakable that the hepatitis was not
aggravated by service.
As for whether hepatitis is otherwise related to service,
none of the medical evidence of record relates the current
findings of hepatitis C or cirrhosis of the liver to service.
VA examiner dated in January 2003 noted that review of the
service medical records showed no treatment for hepatitis
during service, nor was she evaluated for any hepatitis
recurrence or complication. As a result, hepatitis due to
service was not found by the examiner. For cirrhosis of the
liver, there was no diagnosis of cirrhosis of the liver in
service, or for many years following service. The record
includes four liver biopsies. Liver biopsy in 1991 showed
chronic inflammation but no cirrhosis of the liver. Liver
biopsy in 1996 revealed chronic active hepatitis with minimal
fibrosis, but not amounting to cirrhosis. The third liver
biopsy dated in 2000 and fourth liver biopsy dated in 2002
both showed Grade 3 inflammation with Stage 4 cirrhosis.
Thus, the first diagnosis of cirrhosis of the liver was dated
in 2000, many years following separation from service.
Based upon the above information, the evidence does not show
that hepatitis C was aggravated in service, or that either
hepatitis C or cirrhosis of the liver was otherwise directly
related to service. Nevertheless, the veteran's main
contention is that her hepatitis C and cirrhosis of the liver
are secondary to service-connected lower back disability.
Specifically, the veteran contends that medication therapy
for her lower back disability aggravated her hepatitic C and
caused her cirrhosis of the liver.
For secondary service connection claims, a disability that is
proximately due to or the result of a service-connected
disease or injury shall be service connected. 38 C.F.R. §
3.310. Furthermore, the Court has held that the term
"disability" as used in 38 U.S.C.A. §§ 1110, 1131 should
refer to "any additional impairment of earning capacity
resulting from an already service-connected condition,
regardless of whether or not the additional impairment is
itself a separate disease or injury caused by the service-
connected condition." Allen v. Brown, 7 Vet. App. 439, 448
(1995).
In this case, there are four etiological opinions addressing
the issue of whether the veteran's hepatitis C or cirrhosis
of the liver are secondary to her service-connected lower
back disability, including medication treatment: September
1999 VA examiner, January 2003 VA examiner, March 2006 VHA
examiner, and May 2006 VA Nurse Practitioner.
The September 1999 VA examiner stated in the medical history
that the veteran was discharged from service for a
musculoskeletal disability involving her lower back.
Diagnostic testing in 1999 revealed that her hepatitic C
antibody continued to be reactive. The diagnosis given was
hepatitis C infection. The examiner indicated that hepatitis
C infection was not related to her service-connected
disability.
Upon review, the September 1999 VA examiner's opinion is not
competent medical evidence. The examination report shows
that the veteran's medical records were not available for the
examiner to review. Therefore, it was not possible to have
make an informed opinion based on a review of her medical
history. Moreover, the examiner did not provide any
rationale for his opinion.
The January 2003 VA examiner provided a report in January
2003 and an addendum dated in March 2003. Unlike the
September 1999 VA examiner, the January 2003 VA examiner did
review the veteran's claims file, including medical records.
The examiner discussed her medical history, including
diagnosis of hepatitis C in August 1995. Prior to service,
the veteran had hepatitis B. Risk factors for her acquiring
hepatitis B and C included use of IV drugs between the ages
of 18 and 20 years. The examiner discussed her hepatitis C
treatment and subjective symptomatology of fatigue,
generalized weakness, and occasional headaches.
The March 2003 VA addendum report indicated that the
examiner's opinion was that the veteran condition of chronic-
related HCV infection, nonsteroidal anti-inflammatory
medications such as Sulindac, as well as the COX II
nonsteroidal anti-inflammatory medications (I.e., Vioxx,
Celebrex, and Bextra) can be responsible for inflammation of
the liver and because of this, may aggravate the ongoing
inflammation already present due to the HCV infection.
However, it was more likely that the original hepatitis was
not related to the use of Sulindac, but that was due to the
more usual cause, that of IV drug use. In addition, the
cirrhosis of the liver was not due to alcohol abuse but
rather to hepatitis C.
Upon review, the opinion that the veteran's original
hepatitis was not related to Sulindac is competent evidence
as it was based on a review of the medical evidence and
supported by the record. It is clear that the veteran
acquired hepatitis prior to her taking Sulindac. The
examiner also related that it was more likely that she
acquired hepatitis through IV drug use. However, the opinion
is limited to only Sulindac as the examiner did not indicate
whether the use of the other anti-inflammatory drugs,
combined or separate, caused her to acquire hepatitis C.
In addition, the examiner's opinion regarding aggravation is
not competent medical evidence. The examiner's opinion was
that the nonsteroidal anti-inflammatory medications "can"
be responsible for aggravation her HCV infection, or
hepatitis C. The term "can" and "may", as used by the
examiner, only shows possible causes of the aggravation of
her hepatitis C and is therefore, speculative in nature. As
the opinion is speculative in nature it is not competent
evidence.
Because the record did not include any competent medical
opinion addressing the veteran and her representative's major
contention, that her hepatitis C condition was aggravated by
her nonsteroidal anti-inflammatory medications, the Board
sought a VHA opinion.
The VHA examiner is a Gastroenterologist. He indicated in
the March 2006 report that all 6 volumes of the veteran's
file were reviewed. The examiner reported the veteran's
medical history involving her hepatitis C and cirrhosis,
noting that she did not show cirrhosis in the 1991 or 1996
liver biopsies. Cirrhosis was first noted in 2000, which the
examiner opined that her disease progressed in the
development of cirrhosis over a period of 10 years, despite
treatment. The examiner also noted that over the course of
treatment for her musculoskeletal disorder, she apparently
received Sulindac along with various other medications.
However, the examiner commented that the record does not show
her developing an acute flare-up of hepatitis or symptomatic
adverse reaction to this drug or any other agent.
The examiner made the following pertinent findings concerning
hepatitis C: hepatitis C is not acquired by orally ingesting
contaminated material or drugs or medications; the only agent
known to aggravate hepatitis C and accelerate progression to
cirrhosis is alcohol and; progression to cirrhosis is a
natural outcome of chronic hepatitis C infection and takes
very many years to develop.
As for medications, the examiner determined that: most
medications and especially NSAIDs have some hepatotoxity. Of
all the NSAIDs, Sulindac is most likely to cause liver
damage. The incident of hepatic injury is 27 per 1000,000
prescriptions. Liver injury with Sulindac and other NSAIDs is
generally mild and reversible. Transient minor increase in
liver enzymes is not a useful predictor of NSAID induced
liver injury. Sulindac causes liver injury by acute
idiosyncratic hypersensitive reaction, more commonly in women
than men and in patients over 50 years of age. Reaction
occurs in the usual therapeutic dosage, usually occurring
within 1 to 4 weeks of starting the drug and consist of
fatigue, vomiting, anorexia followed by fever and jaundice;
symptoms resolve within 3-4 weeks, but abnormal liver enzymes
can persist for months thereafter. There is no evidence that
Sulindac-induced liver damage progresses to chronic liver
disease.
Based upon the above information, the examiner opined that it
was highly unlikely that the veteran's hepatitis C underwent
permanent increase in severity due to medications used for
her musculoskeletal disorder, that it was highly unlikely
that the drugs prescribed for musculoskeletal disease either
caused or contributed to the development of cirrhosis.; and
it was highly likely that the cirrhosis is the end result of
hepatitis C infection alone.
Upon review, the March 2006 VHA examiner's opinions were
based upon a review of claims file, including medical
history, and specific medical knowledge involving hepatitis C
and interactions between hepatitis C and NSAIDs and other
medications. The medical knowledge noted in the report is
not contradicted by any other medical evidence in the record.
In addition, the references to the veteran's history are
accurate. The examiner explained in detail why the veteran's
hepatitis C was not aggravated by her medications for lower
back disability, and explained why and how her hepatitis C
progressed and developed cirrhosis of the liver. As such,
the Board finds the March 2006 VHA opinion to be competent
medical evidence that is supported by the record and reasoned
analysis.
In response to the VHA opinion, the veteran submitted a VA
medical statement dated in May 2006. She asserted in a
written statement that the medical provided indicated that
the medication she was taking would indeed aggravate her
liver. The VA medical statement is from a nurse practitioner
who specifically stated that the veteran had a long standing
history of using Perocet and Lortab and other medications
with Tylenol. She opined that these medications can
aggravate the veteran's condition of cirrhosis of the liver
and hepatitis C, and that she is no longer taking these
medications. However, the May 2006 VA medical opinion is not
competent medical evidence for the same reason that the
January 2003 examiner's opinion regarding aggravation is not
competent medical evidence. The examiner's opinion was that
the medications "can" aggravate her hepatitis C and
cirrhosis of the liver. The term "can", as used by the
examiner, only shows possible causes of the aggravation of
her hepatitis C and cirrhosis of the liver is therefore,
speculative in nature. As the opinion is speculative in
nature it is not competent evidence. Although the veteran
believed that the May 2006 VA nurse practitioner stated in
her report that the medications would indeed aggravate her
liver, this is in fact not what the nurse practitioner
reported.
In the Appellant's Brief in Response to Medical Expert
Opinion, the veteran's representative conceded that the VHA
opinion was very clear and concise; however, the
representative asserted that the VHA examiner did not clarify
whether the studies he referred to addressed only otherwise
healthy patients, or included those already infected with
hepatitis C. In other words, the representative is arguing
that the examiner failed to address whether the veteran's
already existing hepatitis C was aggravated or worsened by
the NSAIDs. The Board respectfully disagrees. The VHA
report clearly indicated that the only known agent to
aggravate hepatitis C and accelerate progression to cirrhosis
is alcohol and that progression to cirrhosis is the natural
outcome of chronic hepatitis C infection and takes very many
years to develop. Clearly, the examiner did address how and
why a patient's hepatitis C would be aggravated. NSAIDs and
in particularly Sulindac were not listed as a known agent to
aggravate hepatitis C. The examiner then explained the
effects of NSAIDs and in particular Sulindac on the liver and
emphasized their mild and otherwise reversible effect.
Finally, the Board recognizes the veteran's statements that
she believes her hepatitis C and cirrhosis of the liver are
secondary to treatment for her service-connected lower back
disability. Indeed, the veteran is competent as a layperson
to report that on which she has personal knowledge. See
Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, there
is no evidence of record that the veteran has specialized
medical knowledge to be competent to offer medical opinion as
to cause or etiology of the claimed disorders. See Grottveit
v. Brown, 5 Vet. App. 91. 93 (1993); Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). The probative persuasive medical
evidence shows that the veteran's hepatitis C is not related
to service or her service-connected low back disability,
including medication treatment for lower back disability, and
the competent VHA report clearly shows that the veteran's
hepatitis C was not aggravated or otherwise caused cirrhosis
of the liver because of the medications related to her lower
back disability.
The preponderance of the evidence is against the service
connection claim for hepatitis C and cirrhosis of the liver.
Thus, the benefit-of-the-doubt rule does not apply, and the
claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to service connection for hepatitis C and
cirrhosis of the liver is denied.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs